Law of Communication - Assignment Example

Case Analysis: Law of Communication Name Tutor Name Course Date [Words 2394] Introduction The tort for defamation depends on the publication or communication of defamatory nature, and not just the words written or spoken. This essay present a case analysis, where the elements to bring a successful claim of defamation are examined. It also examines the factors to consider in determining commission of scandalizing contempt, breach of confidence and whether the source of information can be revealed in defamation proceedings. Balancing claimants’ right to privacy with plaintiff’s right to freedom of expression is also explored. Has Sam defamed Carey in his online article ‘We object! B-grade celebrity’s brush with the long arm of the law’ and are any defences available to him? Based on the facts presented by the case, to determine whether Sam defamed Carey by publishing the online article, it is crucial to examine the elements considered for claims of defamation to be actionable under the Australian law. In common law jurisdictions such as New South Wales, to establish whether Sam’s conduct fits within the scope of defamation, the communication or publication should satisfy a number of criteria. First, the statement must be defamatory. The first action in defamation analysis is to examine the statement or the words used to determine if the language can be viewed fairy as touching on the reputation of the plaintiff1. This means that the statement must lower the plaintiff’s reputation in the eyes of “the right thinking members of a society, as well as cause the plaintiff to be looked upon with feelings of disesteem, contempt, hate or fear. However, as stated in the case law Thorley v Kerry, the courts consider vulgar statements or statements spoken in jest not to be defamatory2. In the case study, Sam’s publication portrayed Carrey as being immoral and promiscuous. It can be argued that because of the publication, she would be regarded with contempt, disesteem of hate by her conservative fans of the soap opera Here and Abroad. In addition, statements may not be defamatory if they contain an innuendo as was held by the court in the case Lewis v Daily Telegraph3. However, reference to “Miss CC and the “Here and Abroad,” made direct reference to Carrey, hence Carrey was defamed. Second, the statement must refer to the plaintiff. In this case, it should identify the claimant directly or indirectly. In the case scenario, although the words identified Carey indirectly, any reasonable thinking person in Canberra who watched the soap opera could have identified the person the article has referred to. In the case law, Sam used the words “... a certain celebrity of Here and Abroad fame (who we will simply call Miss CC) was caught canoodling with none other than the not-so-Honourable Justice Darren Desperate...” Therefore, Sam defamed Carey and therefore she can bring an action of defamation against Sam. This was demonstrated in the case law per Willes J in Eastwood v Holmes, where the court held that if a class of people were defamed (in the case, this refers to the statement “a certain celebrity of Here and Abroad fame”), the person in the class that was individually referred to can bring an action4. Liability for publication is interpreted broadly. As demonstrated in the case Webb v Bloch, the plaintiff may bring an action for defamation against the author of the publication as well as the publisher and the source of information5. The choice for whom to sue depends on the plaintiff to decide6. Third, the statement to which the defendant brings an action must have been published. By published, this means the statement was communicated to more than one person, or a third party, other than the plaintiff. When Sam uploads the article online to Female’s Fortnightly, it is clear that the article can be accessed by more persons other than Carey. Section 11 of the Defamation Act 2005 No 77, specifies the choices of law for defamation proceedings. S(1) of the Act states that if the matter is published within a certain Australian Jurisdictional are, the substantive law applicable within the area should be applied in the jurisdiction to establish any cause of action for defamation as a result of the defamation. Further, Section 11(3) of the Act specifies that to determine the jurisdictional area where the harm occurred due to the publication, the court may consider the place at the time of publication where the plaintiff was resident, the coverage of publication in each relevant jurisdiction and the degree of harm sustained by the plaintiff. In the case, even though online magazine is published in Canberra, it is accessible to Australian Subscriber who pays an annual fee of $10. In conclusion, Sam defamed Carey in his online article. Has Sam committed scandalising contempt by publishing his article? In determining whether Sam committed scandalising contempt, it is critical to pass Sam’s publication under the test for contempt. Scandalising the court denotes conducts that defame the court or the judges so as to weaken the public confidence in the judicial system7. Such a definition was set out in several cases, such as Attorney-General Ex p; Re Goodwin8; R v Dunabin; Ex p Williams9; Gallagher v Durack10. In the case study, Sam defamed the judicial system and particularly Judge Darren when he commented that he suspected the Judge Darren would not give a fair trial to the suspect involved in a murder trial of the Judge’s wife since he had been involved in extra-marital affair with his mistress, in a case the case that the judge presided over. In testing for scandalising contempt, the publication must be intended to interfere with the course of justice, as was stated in the case John Fairfax & Sons Pty Ltd and Reynolds v McRae11. The intention must also be clear, as was determined in the case Hinch v Attorney General (Vic)12. This means that Sam has several defences. The defences fall into fair comment and justification13. First, it will be on the onus of the defendant, in this case Sam, to prove that the publication was a fair comment. In this case, there would be no scandalising contempt if what Sam did was merely to criticise the conduct of the court in good faith. In the case however, Sam’s action was not in good faith as he had been motivated by the desire to get a good gossip to increase the subscribership. It is also on the onus of Sam to prove justification or truth in his assertions in the publication. The courts have generally held that reasoned or legitimate criticisms of the judicial system are not treated as scandalising contempt. This was demonstrated in the case Nationwide News Pty. Ltd. v. Willis14. In stating that “... I suspect he will be getting the ‘fairest’ of trials, given Justice Desperate’s propensity for adultery...” Sam’s criticism is not legitimate or reasoned as it evidently pointed at weakening public confidence in the judicial system. Based on the facts presented in the case study, it is clear that Sam committed a scandalising contempt. Has Sam breached Tom’s confidentiality through revealing in his article that Tom previously had an affair with Carey? The issue at hand is establishing a breach of confidentiality. In common law, to bring an action for breach of confidentiality, the action of the defendant must pass through a test15. First, the information in question must be confidential. In which, there must be proof of unauthorised use of information and that the information was protected confidence16. In New South Wales, journalism or published information falls under Sections 126A and 126B Evidence Act 1995 (NSW). Under Section 126A of the Evidence Act 1995 (NSW), protected confidence means communications that has made a person in confidence to another person, or a confidant, where the confidant was under implied or express instruction not to disclose the information. In the case Commonwealth v Fairfax, the court referred to a breach of confidence as the publication of confidential information imparted in the confidence of the confidant that should not be divulged17. In such a cases, the law protects right of privacy. In the case analysis, the information that Tom revealed to Sam that he had previously had an affair with Carey was indeed confidential information, as it was made in confidence with Sam as the Confidant. Additionally, Sam was under express instruction not to publish the information. By publishing the information, Sam betrayed the confidence18. Therefore, it can be concluded that Sam breached Tom’s confidence by revealing in his article that Tom had previously had an affair with Carey. Can Tom be compelled under the common law at this stage of the defamation proceedings to reveal the source of the information he obtained about Carey? In determining whether Tom would be compelled under the common law at the stage of defamation proceedings to reveal the sources of information he obtained about Carey, the first consideration would be whether any harm would come about by revealing the information. In this case, if there would be no likely harm, then Tom would be compelled to reveal the source of his information. In the case NRMA v John Fairfax Publications, the court held that in circumstances where while giving evidence had the potential to lead to proceedings against the protected confider, then keeping the identity of the sources classified, in order to achieve the evidence was central19. Therefore, since the confider was one of Carey’s staffers, it is possible that there is a potential for harm if Tom revealed his source. A range of harms can be anticipated, including a possible suit by Carey against the staffer. This means that Sam will not be compelled under the common law to reveal the source of the information20. Under the common law, Tom would have various defenses. Such as that the information revealed is true, it outweighs the protection of Carey’s reputation and lastly, that it was a fair comment and non-malicious in nature. In the case, since the allegations that Darren and Carey are seeing each other is true and that the information was already in public, since Darren and Carey were seen at a public space, and since Clandestine is a popular nightspot in Canberra, the information was already in the public domain. Further, it was a fair comment, since Sam was given the information under non-malicious intent and the publication was in the interest of the public. In conclusion, Tom cannot be compelled to reveal the source of information. How Carey and Darren’s right to privacy can be balanced with Sam’s right to freedom of expression in this context In determining how Carrey and Darren’s right to privacy can be balanced with Sam’s right to freedom of expression, the fundamental issue is determining how best to protect privacy without undermining freedom of press. Since both rights can be abused as well as cause harm if a careful balance is not struck, where the balance should lie is an essential issue in online publishing where personal privacy faces great intrusion21. Within this context, the components of journalisms should be clearly defined. For instance, the term journalism should be clearly defined by the statutes, to specify the scope of practices and exemptions associated with rights to privacy and freedom of expression. Further, there should be a statutory cause of action for breach of privacy, to give a right to sue for invasion of privacy. The cause of action should be appropriate in circumstances where there is a breach of privacy and reasonable expectation of privacy22. The legislation should also take into consideration where the public interest lies in maintaining the claimant’s privacy and how it should outweigh other matters of public interest. The cause of action should also balance the current legislative-based privacy protections accorded to individuals, as well as address potential gaps existing in legislation and common law23. In Australia, although aspects of personal privacy are protected by the Privacy Act 1988, privacy rights associated with freedom of expression of the media do not exist24. There is a need to enact such rights in the legislation, as it would serve to clarify the area of personal privacy as well as improve the framework for remedies for breach of personal privacy. Conclusion In conclusion, Sam defamed Carey in his online article. Next, Sam committed a scandalizing contempt. Third, Sam breached Tom’s confidence by revealing in his article that Tom had previously had an affair with Carey. Tom cannot be compelled to reveal the source of information and lastly, Carrey and Darren’s right to privacy can be balanced with Sam’s right to freedom of expression when the term journalism is clearly defined by the statutes, to specify the scope of practices and exemptions associated with rights to privacy and freedom of expression. References Books, Journals and Articles Australian Information Commissioner, Privacy law reform – getting the balance right (2013), Australian Government Australian Law reform Commission, Privileges protecting other confidential communications (2013) Australian Government Judicial Commission of New South Wales, Contempt in the Face of the Court (2013) Judicial Commission of New South Wales, Contempt generally (2013) Judicial Commission of New South Wales, Defamation (2013) Michael Hart, Striking a balance: Defining the right of privacy (2011) The Chambers Magazine Nicholas Petrie, “Reforming the Remedy: Getting The Right Remedial Structure To Protect Personal Privacy,” (2012) 17(1) Deakin Law Review, 121,128 Virginia Shirvington, Ethics and Conflict of Interest And Duties, The Law Society of New South Wales (April 2006) Case Laws Attorney-General Ex p; Re Goodwin [1969] 2 NSWR 360 Commonwealth v John Fairfax & Sons Ltd (1980) 147 Gallagher v Durack (1983) 152 CLR 238 Hinch v Attorney General (Vic) (1987) 164 CLR 15 John Fairfax & Sons Pty Ltd and Reynolds v McRae (1955) 93 CLR 351 Lewis v Daily Telegraph [1964] AC 234 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 NRMA v John Fairfax Publications [2002] NSWSC 563 R v Dunabin; Ex p Williams (1935) 53 CLR 434 Thorley v Kerry (1812) 4 Taunt 355 at 365 Webb v Bloch (1928) 41 CLR 331 Willes J in Eastwood v Holmes (1858) 1 F&F 347 at 349 Read More